Dugas v. National Aircraft Corporation

• Decision Date: 24 February 1970
• Docket Number: 40749.,Civ. A. No. 40748
• Citation: 310 F. Supp. 21
• Parties: Xavier Maxine DUGAS, Admr. of the Estate of Kathryn Cecile Dugas, Dec'd. v. NATIONAL AIRCRAFT CORPORATION and James Hart, Admr. C.T.A. of the Estate of Theodore H. Hart, a/k/a Theodore Henry Hart, III, Dec'd. Betty R. GUISINGER, Admx. of the Estate of Christina M. Hart, Dec'd. v. NATIONAL AIRCRAFT CORPORATION and James Hart, Admr, C.T.A. of the Estate of Theodore H. Hart, a/k/a Theodore Henry Hart, III, Dec'd.
• Court: U.S. District Court — Eastern District of Pennsylvania

310 F. Supp. 21

Xavier Maxine DUGAS, Admr. of the Estate of Kathryn Cecile Dugas, Dec'd. v. NATIONAL AIRCRAFT CORPORATION and James Hart, Admr. C.T.A. of the Estate of Theodore H. Hart, a/k/a Theodore Henry Hart, III, Dec'd.

Betty R. GUISINGER, Admx. of the Estate of Christina M. Hart, Dec'd. v. NATIONAL AIRCRAFT CORPORATION and James Hart, Admr, C.T.A. of the Estate of Theodore H. Hart, a/k/a Theodore Henry Hart, III, Dec'd.

Civ. A. Nos. 40748, 40749.

United States District Court, E. D. Pennsylvania.

February 24, 1970.

Freedman, Borowsky & Lorry, by Milton M. Borowsky, Philadelphia, Pa., for plaintiffs.

Montgomery, McCracken, Walker & Rhoads, by Sidney L. Wickenhaver, Detweiler, Sherr & Hughes by Harold B. Marcus, Philadelphia, Pa., for defendants.

OPINION

INTRODUCTION

HIGGINBOTHAM, District Judge.

On the afternoon of December 29, 1965, Theodore H. Hart, along with his daughter, Christina M. Hart, and her friend, Kathryn Cecile Dugas, took off from Nassau, Bahamas en route to San Juan, Puerto Rico in a small private airplane piloted by Mr. Hart. Early on the evening of December 29, 1965, Mr. Hart and his two passengers landed on the island of South Caicos, Bahamas, in order to refuel. Neither the small private airplane nor its passengers and pilot were ever heard from or seen again after the plane left South Caicos on the evening of December 29, 1965.

The administrator of the estate of Kathryn Cecile Dugas, her father, Xavier Maxime Dugas, and the administrator of the estate of Christina M. Hart, her mother, Betty R. Guisinger, filed separate suits, which were consolidated for trial, against National Aircraft Corporation, the owner of the vanished aircraft, and James M. Hart, the administrator of the estate of Theodore M. Hart, the aircraft's pilot. The plaintiffs alleged that the negligent operation of the aircraft by Mr. Hart, while acting as National Aircraft's agent, caused the deaths of plaintiffs-decedents.

Upon defendants' motion for judgment on the pleadings, Judge Kraft held that plaintiffs' right to recover in admiralty under the Death on the High Seas Act, 46 U.S.C. § 761 et seq., was not the exclusive basis of recovery in this case, 300 F.Supp. 1167. Since it was admitted by plaintiffs and defendants that the plane crashed in international waters, Judge Kraft held that the survival statute of the state where both defendants resided, the Pennsylvania Survival Act, 20 Purdon P.A. § 320.601 could supplement the amount recoverable under the admiralty wrongful death provision, 46 U.S.C. § 762. Thus upon proof of liability of defendants, the plaintiffs would be entitled to recover an award in addition to the damages collectible as "pecuniary loss" under the Death on the High Seas Act, supra.

Jurisdiction was originally based on diversity of citizenship. After Judge Kraft's opinion, jurisdiction was retained on the ground that the actions arose in admiralty under the Death on the High Seas Act, supra. The claim for jury trial was stricken, and the consolidated actions proceeded before this Court without a jury.

Three basic issues are presented by the parties for resolution by this Court:

(1) Does plaintiffs' evidence establish the defendants' liability for the death of plaintiffs' decedents?

(2) For the death of a minor child, what is the appropriate measure of damage covered by the statutory term "pecuniary loss" under the Death on the High Seas Act, supra?

(3) Can the defendants re-litigate the question as to the purported inapplicability of the Pennsylvania Survival Statute where that issue had been presented to and decided by Judge Kraft when he disposed of defendants' motion for judgment on the pleadings?

As to these basic issues, for the reasons stated hereafter, I find that the plaintiffs' evidence established liability against the pilot's estate, but not against the owner of the aircraft. I further find that although there has been a paucity of cases construing "pecuniary loss" in cases involving the death of minor children under the Death on the High Seas Act, supra, neither the plaintiffs' broad interpretation nor the defendants' narrow interpretation is supported by the case law. As a matter of law, I must reject defendants' final contention that Judge Kraft's ruling is not binding. Judge Kraft's ruling is the law of this case and cannot be modified. TCF Film Corp. v. Gourley, 240 F.2d 711, 713 (3rd Cir., 1957); United States v. Wheeler, 256 F.2d 745, 748 (3rd Cir., 1958). The plaintiffs, for the reasons and findings discussed below are awarded damages under both the Pennsylvania Survival Act, supra, and the Death on the High Seas Act, supra.

II

FINDINGS OF FACT

(1) Plaintiff, Xavier Maxime Dugas, is the duly appointed administrator of the estate of Kathryn Cecile Dugas under the laws of Georgia. He is the surviving father of the deceased. Virginia Elise Dugas is the deceased's surviving mother.

(2) Plaintiff, Betty R. Guisinger is the duly appointed administratrix of the estate of Christina M. Hart and the sole surviving parent of Christina M. Hart. Mrs. Guisinger had married Christina's father, Theodore H. Hart in 1949, but divorced him in 1950. She was remarried in 1951 to D. C. Guisinger, whom she divorced in 1956. She has not since remarried. (N.T., 42-44).

(3) Defendant, National Aircraft Corporation, a Pennsylvania corporation, is the owner of a Piper Commache PA-24-180 Registry No. 6077P, Serial No. 24-1172 aircraft. (N.T., 105) (hereinafter referred to as the airplane).

(4) Defendant, James Hart, is the duly appointed administrator C.T.A. of the estate of Theodore H. Hart, by the Register of Wills of Delaware County, Commonwealth of Pennsylvania. The defendant is a citizen and resident of the Commonwealth of Pennsylvania.

(5) Theodore H. Hart was the pilot of the airplane on December 29, 1965 (N.T., 106).

(6) On December 29, 1965, Christina M. Hart and Kathryn Cecile Dugas were guest passengers on the airplane (N.T., 105).

(7) Mr. Hart and his two passengers left Brunswick, Georgia in the airplane on December 26, 1965, for a Christmas vacation in the Caribbean Islands (N.T., 21).

(8) Prior to December, 1965, Christina M. Hart and Kathryn Cecile Dugas had been schoolmates and companions for many years (N.T., 20).

(9) The airplane piloted by Mr. Hart made a stop in Fort Laureldale, Florida en route to the Island of South Caicos, Bahamas (N.T., 30).

(10) The airplane made a stop in Nassau, Bahamas, on December 29, 1965, where Mr. Hart filed a flight plan with his destination as San Juan, Puerto Rico, with a stop at South Caicos Island (N.T., 111).

(11) When Mr. Hart and his two passengers left Nassau on December 29, 1965, the official weather reports issued from the United States Weather Bureau at San Juan, Puerto Rico, at noon Eastern Standard Time, indicated that a storm lay directly across the intended path of flight to San Juan, Puerto Rico (N.T., 209).

(12) There is no evidence that Mr. Hart availed himself of this weather information. But there is evidence that this information was available before Mr. Hart left Nassau (N.T., 125).

(13) When Mr. Hart and his two passengers arrived at South Caicos, four hundred and ten (410) miles from San Juan, Puerto Rico (N.T., 199), on December 29, 1965, at approximately 6:30 P.M., Eastern Standard Time for refueling it was already dark (N.T., 82).

(14) At approximately 6:30 P.M., Eastern Standard Time, upon visual inspection, the weather was clear between Nassau and South Caicos; between South Caicos and San Juan the sky was overcast with thunderstorms and lightning (N.T., 96).

(15) The person helping to refuel the airplane, C. W. Maguire, a person with some training in metrology and the manager of the small airport at South Caicos, inquired if Mr. Hart had been qualified to fly under non-visual flight rule conditions (N.T., 87).

(16) C. W. Maguire also informed Mr. Hart that several pilots who had flown from San Juan, Puerto Rico, to South Caicos had reported severe weather conditions (N.T., 88).

(17) C. W. Maguire aided Mr. Hart in manually starting the airplane since the starter mechanism was not functioning properly (N.T., 84).

(18) After Mr. Hart and his two passengers left South Caicos island at approximately 7:15 P.M., on December 29, 1965, planning to fly to San Juan, Puerto Rico, the pilot and passengers were never heard from or seen again, nor has the airplane ever been found.

(19) Mr. Hart, Christina M. Hart and Kathryn Cecile Dugas died in a crash of the airplane on December 29, 1965, between South Caicos and San Juan, Puerto Rico.

(20) Mr. Hart acted negligently and unreasonably in leaving South Caicos island on December 29, 1965, in view of the lack of adequate survival equipment on board (N.T., 112), the condition of the aircraft (N.T., 186), the fact that it was night and he was not qualified to fly under non-visual flight rules conditions; the adverse weather conditions, signs of which were visible, and in his disregard of the warnings he received of adverse weather conditions (N.T., 138-143).

(21) Mr. Hart's negligent and unreasonable actions caused the deaths of Christina M. Hart and Kathryn Cecile Dugas.

(22) Mr. Hart's undertaking the flight from South Caicos under these adverse conditions was the proximate cause of the death of Christina M. Hart and Kathryn Cecile Dugas.

(23) When piloting the airplane owned by National Aircraft on December 29, 1965, Mr. Hart was not acting as the servant or agent of National Aircraft.

(24) At the time of her death, Christina M. Hart was sixteen (16) years old (N.T., 41). She was a bright and capable student who had intentions of attending college (N.T., 50-60). I find that she would have attended college had she lived. She lived with her mother in Brunswick, Georgia and was a healthy well disciplined and helpful daughter (N.T., 63).

(25) Betty R. Guisinger is a divorced woman in relatively good health (N.T., 71), earning a modest income (...